Panel investigating judge under spotlight
Alawyer hand- picked by f ederal Justice Minister Jody Wilson- Raybould to serve on the committee probing the conduct of Ontario Superior Court Justice Frank Newbould hails from a Vancouver law firm with long-standing connections to the organization that complained about the judge.
On March 31, Wilson-Raybould announced that Clarine ( Clo) Ostrove, a partner at Mandell Pinder, a Vancouver firm that focuses exclusively on First Nation work, is her designate on the three-person inquiry.
The other two, chosen by the Canadian Judicial Council, are Richard Chartier, chief justice of Manitoba, and Martel Popescul, chief justice of the Saskatchewan Court of Queen’s Bench.
The hearing will examine whether Newbould’s conduct in relation to a family-owned cottage at Sauble Beach on Lake Huron and his public comments about a proposed land- claim settlement with the Saugeen First Nation brought the administration of justice into disrepute.
Newbould has apologized for his intervention, describing it as “an error” to send a letter to the local mayor and council and to participate in a public meeting.
The complaint was brought to the Judicial Council — twice, actually — by the Indigenous Bar Association and its president, Koren Lightning-Earle.
At its heart, it alleges that Newbould, by publicly opposing the proposed settlement and offering a legal opinion about it, “aggressively revealed his own bias against First Nation Peoples” and that he violated ethical guidelines for judges.
“… Justice Newbould has removed any appearance that the First Nation will be able to find justice,” Lightning-Earle wrote on June 16, 2015 in a plea that the council reconsider its decision.
One of Ostrove’s associates at Mandell Pinder, Stephen Mussel, is a member of the Indigenous Bar Association.
A former Mandell Pinder associate, and former Chief of the Snuneymuxw First Nation in Nanaimo, B. C., Douglas S. White, was also an Indigenous Bar Association director.
Another of the firm’s former lawyers, Angela Cousins, was a board member of the association.
Most, including Ostrove herself, have spoken on Aboriginal law issues at various conferences, including two where either Wilson- Raybould, a lawyer, former prosecutor and former regional Chief of the B. C. Assembly of First Nations before her election as MP for Vancouver Grenville, or her husband, Tim Raybould, were also speakers.
Wilson-Raybould, reached Monday through her spokesman David Taylor, defended Ostrove’s appointment by saying it’s important that the inquiry panel “include representation from accomplished members of the bar with significant knowledge about, and experience with, indigenous peoples in Canada.”
She said Ostrove has “more than three decades of experience in the field of indigenous law,” but didn’t directly answer questions about Mandell Pinder’s links to the Indigenous Bar Association.
The first to notice these c onnections was Chris Budgell, a self-appointed citizen watchdog of the judicial council.
For Budgell, that the council reversed its original decision on the Newbould complaints — which were first dismissed on Jan. 6, 2015 after Newbould apologized — and is proceeding with a hearing though the judge has since announced his intention to retire this June means it “will have to move very quickly.”
For the record, Budgell said he has “no sympathy” for Newbould but wondered, “What are the taxpayers, who will be paying for these proceedings, going to get out of this?”
Newbould, through his lawyer Brian Gover, appealed the judicial council’s decision to refer the complaint for a hearing, arguing that the council didn’t have the juris- diction to do it, but lost at the Federal Court.
Then just last week, the Federal Court of Appeal set May 16 as the date for an expedited appeal of that decision, meaning the timeline for the judicial council may be ever-tighter.
After successfully winning its reconsideration bid, the bar association immediately demanded the council “expedite” the inquiry before Newbould retires.
“We urge the CJC to act expeditiously,” Lightning-Earle wrote the council on Feb. 28. “It brings the system of justice into disrepute if a judge can evade a conduct inquiry because the process is slow and by merely announcing retirement.”
But the pressure to rush to judgment resulted in a stinging letter from the president of the Association of Superior Court Judges, Justice Susan G. Himel of the Ontario Superior Court.
She told the judicial council on March 8 that “the content and tone of the ( IBA) letter are quite frankly disturbing … It appears this demand is being made for tactical reasons …”
Himel said it’s “simply not possible to conduct an inquiry before June 1,” and noted that the issue before the inquiry “will be moot,” since its sole decision would be whether Newbould “should be removed from the bench or not. By his retirement, Justice Newbould is removing himself from the bench.”
She called Newbould “one of Ontario’s most outstanding jurists,” who “has been a giant in the area of commercial law” and said he should be “allowed to retire with dignity.”
The Saugeen First Nation’s claim for this part of Sauble Beach has simmered for decades, with the First Nation arguing its ancestors never surrendered it.
Finally in August of 2014, in a mediation presided over by former Supreme Court of Canada judge Ian Binnie, a proposed deal was reached.
Newbould wrote a sevenpage letter to the council, urging the town to reject the deal.
The IBA says Newbould is “directly responsible” for the deal’s failure and says his “disparaging comments” about the First Nation potentially allowing the sale of cigarettes on the beach “have now been given the imprimatur of the bench.”
Though its second complaint involved the same disputed conduct by Newbould, t he I BA’s l anguage was harsher and it emphasized Newbould’s alleged racist comments, saying he had fanned “flames of hatred and further entrenches a settler- colonialist perspective …”
In that letter, Lightning-Earle warned that if the council didn’t reconsider the first decision, “we will consider other remedial options — making the council’s review public; taking political action; and/or instigating a more formal review …”
Council executive director Norman Sabourin told Postmedia Monday in an email that “the press releases and comments made by the IBA played no role in the determination made in this case.”
Lightning- Earle couldn’t be reached for comment.
WE URGE THE CJC TO ACT EXPEDITIOUSLY.